CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 1 décembre 2020

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sE207830C { margin-top:54pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s2E1B62A9 { margin-top:0pt; margin-bottom:6pt; text-align:center } .s780F5245 { border:0.75pt solid #000000; clear:both } .s71604A6B { margin-top:0pt; margin-bottom:0pt; text-align:justify; padding-top:1pt; padding-right:4pt; padding-left:4pt; font-size:10pt } .s3756EA5F { margin-top:0pt; margin-bottom:0pt; text-align:justify; padding-right:4pt; padding-left:4pt; padding-bottom:1pt; font-size:10pt } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s590A3EF4 { margin-top:12pt; margin-left:19.85pt; margin-bottom:0pt; text-indent:-19.85pt } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sD84B6F71 { width:79.26pt; text-indent:0pt; display:inline-block } .sE9B40630 { width:19.85pt; text-indent:0pt; display:inline-block } .s1A685A9 { width:223.34pt; text-indent:0pt; display:inline-block } .s86F8601D { width:163.29pt; text-indent:0pt; display:inline-block } .sBB08A0D4 { width:204.65pt; text-indent:0pt; display:inline-block } .sE908D108 { width:213.99pt; text-indent:0pt; display:inline-block } .s19861BDD { width:186.65pt; text-indent:0pt; display:inline-block } .s6B505E72 { margin:0pt; padding-left:0pt } .s684237A1 { margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase; list-style-position:inside } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s37839E0D { margin-left:10.75pt; margin-bottom:12pt; text-indent:0pt; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-weight:bold; text-transform:none } .sC6C7C49B { margin-left:7.35pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; font-weight:normal; font-style:italic } .sF7610474 { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic } .sE485344B { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s7ED160F0 { text-decoration:none } .s66E9FC38 { font-family:Arial; font-size:8pt; vertical-align:super; color:#000000 } .sD0682254 { margin-top:0pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s30C8A987 { width:4.78pt; font:7pt 'Times New Roman'; display:inline-block } .sB2ED4664 { margin-top:14pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4E0353E8 { width:4.23pt; font:7pt 'Times New Roman'; display:inline-block } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sC3C29E73 { margin-top:14pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase; list-style-position:inside } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .sA2548810 { margin-top:14pt; margin-bottom:0pt; text-align:center; page-break-after:avoid; font-size:10pt } .s718D1C37 { margin-top:0pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .sD0489F03 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s38A1A3E1 { margin-top:0pt; margin-left:59.55pt; margin-bottom:6pt; text-indent:-17.9pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s6FC64B9D { width:2.78pt; font:7pt 'Times New Roman'; display:inline-block } .s3FA6240E { margin-top:14pt; margin-left:59.55pt; margin-bottom:6pt; text-indent:-17.9pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s676DA991 { font-family:Arial; font-size:9pt; color:#666666 } .sAB51C47C { margin-top:14pt; margin-left:27.94pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.26pt; font-family:Arial; font-weight:bold } .s3E19E58F { margin-top:14pt; margin-left:27.26pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.94pt; font-family:Arial; font-weight:bold } .s63844B35 { margin-top:14pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sFBE147AE { margin-top:14pt; margin-left:68.6pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sA1017A7 { margin-left:7.36pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:0.04pt; font-weight:normal; font-style:italic } .sBA1F0987 { margin-top:14pt; margin-left:36.56pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.04pt; font-family:Arial; font-style:italic } .sD11CFAB7 { margin-top:14pt; margin-left:15.01pt; margin-bottom:3pt; text-align:justify; padding-left:1.99pt; font-family:Arial } .sFBC99493 { font-style:italic } .s51DFF5CF { margin-top:0pt; margin-left:34pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sBAD0D18F { width:1.87pt; display:inline-block } .s8D4F77DC { width:188.45pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8B983D37 { text-transform:none } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .sAA38361A { margin-top:14pt; margin-left:17.85pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase } .s1721E4C5 { margin-top:14pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sB9541D82 { font-family:Arial; color:#212121 } .sF15BF526 { font-family:Arial; font-size:8pt; vertical-align:super; color:#212121 } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sE512A940 { font-family:Arial; color:#474747 } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .sB08485A0 { font-family:Arial; font-style:italic; color:#212121 } .s72F8249F { font-family:Arial; display:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 }     GRAND CHAMBER CASE OF GUÐMUNDUR ANDRI ÁSTRÁÐSSON v. ICELAND ( Application no. 26374/18 )     JUDGMENT   Art 6 § 1 (criminal) • Tribunal established by law • Participation of judge whose appointment was vitiated by undue executive discretion without effective domestic court review and redress • Grave breach tainting legitimacy of appointment procedure and raising objectively justified concerns as to political motives behind relevant decisions • Supreme Court’s failure to draw necessary conclusions from its own findings acknowledging breach and to respond to applicant’s arguments • Selection of judges on basis of merit through rigorous process inherent in concept of “tribunal” • Domestic law regulating judicial appointment process an inherent element of concept of “establishment” of court or tribunal “by law” • “Tribunal established by law” also meaning “tribunal established in accordance with the law” • Examination in light of common purpose shared with guarantees of “independence” and “impartiality”: that of upholding fundamental principles of rule of law and separation of powers • Application of three-step test in determining whether irregularities in a judicial appointment process violate the essence of the right to a tribunal established by law • Whether there was (1) a manifest breach (2) of a fundamental rule of the appointment procedure and (3) whether allegations were effectively reviewed and redressed by domestic courts in a Convention-compliant manner • Domestic review to strike balance between competing interests at stake, including those relating to principles of legal certainty and irremovability of judges Art 46 • General measures • No obligation on respondent State to reopen all similar cases that have since become res judicata   STRASBOURG   1 December 2020     This judgment is final but it may be subject to editorial revision.   In the case of Guðmundur Andri Ástráðsson v. Iceland, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Jon Fridrik Kjølbro, President ,   Robert Spano,   Linos-Alexandre Sicilianos,   Síofra O’Leary,   Georgios A. Serghides,   Paulo Pinto de Albuquerque,   Aleš Pejchal,   Faris Vehabović,   Egidijus Kūris,   Branko Lubarda,   Mārtiņš Mits,   Georges Ravarani,   Gabriele Kucsko-Stadlmayer,   Pere Pastor Vilanova,   Jovan Ilievski,   Péter Paczolay,   María Elósegui, judges , and Marialena Tsirli, Registrar , Having deliberated in private on 5 February 2020 and on 16 September 2020, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 26374/18) against the Republic of Iceland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Icelandic national, Mr   Guðmundur Andri Ástráðsson (“the applicant”), on 31 May 2018. 2.     The applicant was represented by Mr V.H. Vilhjálmsson, a lawyer practising in Reykjavik. The Icelandic Government (“the Government”) were represented by their Acting Agent, Ms F.R. Þorsteinsdóttir, the Acting State Attorney General. 3.     The applicant complained that his criminal conviction had been upheld by a “tribunal” which was not “established by law” and which was not independent and impartial, in violation of Article 6 § 1 of the Convention. 4.     On 19   June 2018 the Government were given notice of the application. 5.     The application was allocated to the Second Section of the Court (Rule   52 § 1 of the Rules of Court). On 12 March 2019 a Chamber of that Section, composed of Judges Paul Lemmens, President , Robert Spano, Işıl   Karakaş, Valeriu Griţco, Ivana Jelić, Arnfinn Bårdsen and Darian Pavli, and also of Hasan Bakırcı, Deputy Section Registrar, delivered a judgment in which it unanimously declared the application admissible and held, by five votes to two, that there had been a violation of Article 6 § 1 of the Convention as regards the right to a tribunal established by law. The joint dissenting opinion of Judges Lemmens and Griţco was annexed to the judgment. 6.     On 14 May 2019 the Government requested the referral of the case to the Grand Chamber in accordance with Article 43 of the Convention.   On 9   September 2019 the panel of the Grand Chamber granted that request . 7.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. 8.     The applicant and the Government each filed written observations on the merits of the case (Rule 59 § 1). In addition, third-party comments were received from the Government of Poland, the Commissioner for Human Rights of the Republic of Poland, the Public Defender (Ombudsman) of Georgia and the Helsinki Foundation for Human Rights, all of whom had been given leave by the President of the Grand Chamber to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3). The parties replied to these comments in the course of their oral submissions at the hearing (Rule 44 § 6). 9.     The hearing took place in public in the Human Rights Building, Strasbourg, on 5 February 2020. There appeared before the Court: (a)     for   the   Government Ms F. R. Þorsteinsdóttir ,   Acting Government Agent,   Acting Attorney General, Mr T. Otty QC ,   Counsel, Ms G. S. Arnardóttir ,   Deputy Agent, Ms M. Thejll ,   Deputy Agent, Mr G. Molyneaux   Adviser; (b)     for the applicant Mr V. H. Vilhjálmsson ,   Counsel .   The Court heard addresses, and replies to the questions from the judges, by Mr Vilhjálmsson, Ms Þorsteinsdóttir and Mr Otty. 10 .     On 14 and 20 February 2020, respectively, the applicant and the Government submitted further written replies to some of the questions put by the judges at the hearing. THE FACTS THE BACKGROUND TO THE CASE Legislative history of the judicial appointment procedure in Iceland Act no. 92/1989 on the Separation of the Executive and the Judiciary at the District Level 11.     As part of the efforts to restructure the judiciary in Iceland, on 19   May 1989 the Icelandic Parliament ( Althingi ) adopted Act no. 92/1989 on the Separation of the Executive and the Judiciary at the District Level. Amongst the provisions introduced by the Act was the establishment of an Evaluation Committee to evaluate the competencies and qualifications of candidates for the post of District Court judge. Originally proposed in 1976, the introduction of such a committee was – according to the preparatory material in respect of the relevant Act – meant to ensure judicial independence and to increase public confidence in an independent judiciary. The Committee, an independent administrative body, was advisory vis-à-vis the Minister of Justice and was to be composed of three members appointed by the Supreme Court, the District Courts and the Icelandic Bar Association, respectively. 12.     As regards the appointment of Supreme Court justices, the Supreme Court had been designated to act as an advisory body for that purpose at an earlier stage under Act no. 75/1973 on the Supreme Court ( Lög um Hæstarétt Íslands ). Judiciary Act no. 15/1998 13 .     The Judiciary Act no. 15/1998 (“the former Judiciary Act”), which entered into force on 1 July 1998, originally maintained, as far as is relevant, the Evaluation Committee’s mandate, composition and advisory role. In a judgment delivered on 14 April 2011 in relation to a dispute on the appointment of a District Court judge, the Supreme Court stressed that despite the advisory role of the Evaluation Committee at the material time, the Minister of Justice, when making a proposal for a judicial appointment contrary to the Committee’s recommendation, was nevertheless bound by the principle of appointing the most qualified candidate to a public post and by the duty of “sufficient investigation” under section 10 of the Administrative Procedures Act (see paragraph 115 below for further information on this judgment). 14 .     The role of the Evaluation Committee in the judicial appointment process was further reinforced in 2010 through amendments made to section   4a of the former Judiciary Act by Act no. 45/2010 (see paragraph   103 below). Amongst other important changes concerning the composition and the mandate of the Evaluation Committee, including an increase in the number of members to five and the extension of its mandate to cover the appointment of Supreme Court justices, the amendments introduced the rule that when making judicial appointments the Minister of Justice could only appoint candidates who were considered by the Committee to be the most qualified for a given post. In order to appoint a candidate who had not been considered the most qualified by the Committee, the Minister of Justice needed to obtain the approval of Parliament. This was, according to the Act’s preparatory material, intended to further ensure the independence of the judiciary. That material referred to international legal instruments and recommendations on the appointment of judges, and underlined the importance of proper procedure in judicial appointments, in the light of the judiciary’s significant role in securing fair trial rights and maintaining the checks and balances inherent in the separation of powers. It furthermore referred to an unwritten fundamental principle of Icelandic administrative law, whereby appointments to public posts had to be based on objective considerations and the most qualified candidate had to be appointed to any public post (see paragraph 114 for further information on the aforementioned unwritten administrative law principle). 15.     In view of the increased role conferred upon the Evaluation Committee in the judicial appointment process through these amendments, the Minister of Justice established a set of rules in 2010 (Rules no.   620/2010) to govern the Committee’s work (see paragraph 107 below for further information on the relevant Rules). Establishment of the new Court of Appeal and appointment of its judges General legal framework 16.     On 26 May 2016 the Icelandic Parliament enacted Judiciary Act no.   50/2016 (“the new Judiciary Act”). The new Judiciary Act came into force on 1 January 2018, whereas a number of its temporary provisions, including temporary provision IV concerning the appointment of judges to the Court of Appeal, had entered into force earlier on 14 June 2016. 17.     The new Judiciary Act introduced a new court of second instance in the Icelandic judicial system, namely the Court of Appeal ( Landsréttur ), thereby replacing the former two-tier system – consisting of District Courts and the Supreme Court – with a three-tier system. 18.     Under section 21 of the new Judiciary Act, the Court of Appeal would be composed of fifteen judges. The initial procedure for the selection and appointment of the judges to the new Court of Appeal was regulated under temporary provision IV of the new Judiciary Act. The first paragraph of temporary provision IV provided that the appointment process would be completed by 1 July 2017 and the appointed judges would take up their duties as of 1   January 2018, from which date the Court of Appeal would start operating. Referring to section 4a of the former Judiciary Act (see paragraph 14 above), the first paragraph of temporary provision IV further indicated that an Evaluation Committee would assess the qualifications of the individual candidates for the position of judge at the Court of Appeal and would provide the Minister of Justice with an evaluation report as to which candidates were considered to be best qualified to serve in that position. Pursuant to the relevant paragraph of the temporary provision, which largely reiterated section 4a of the former Judiciary Act (see paragraph 103 below), the Minister of Justice could not appoint a candidate whom the Evaluation Committee had not considered to be amongst the most qualified for the post. It also provided, however, that the Minister of Justice could depart from the assessment of the Evaluation Committee and propose a different candidate (or candidates) who had not been shortlisted by the Committee, on the condition that the proposed candidate(s) had nevertheless been found by the Evaluation Committee to fulfil all the minimum requirements set by section 21 of the new Judiciary Act (see paragraph 105 below) for appointment to the office of Court of Appeal judge, and that the proposal was accepted by Althingi . 19 .     The second paragraph of temporary provision IV then provided that for the first-round of appointments to the new Court of Appeal, the Minister of Justice would submit his or her proposals on each proposed candidate to Althingi . If Althingi accepted the Minister’s proposals, they would then be sent to the President of Iceland, who would formally appoint the relevant judges. If Althingi did not accept any one of the Minister’s proposals, the Minister would then have to submit new proposals to Althingi to replace the refused candidates. Call for applications 20.     On 10 February 2017 a call for applications was issued for the posts of fifteen judges at the Court of Appeal. The application deadline was set at 28 February 2017. According to the information obtained from the official website of the Icelandic Government, the prospective candidates were requested to provide information on the following matters as part of their applications: “(1)     Current occupation. (2)     Education and further education. (3)     Experience of judicial work. (4)     Experience of legal practice. (5)     Experience of administrative work. (6)     Experience of academic work, e.g. teaching and other academic work and information concerning published, peer-reviewed articles and books, academic lectures, etc. (7)     Experience of management. (8)     Experience of additional work which might be useful for judicial post candidates, e.g. preparation of legislation, etc. (9)     Information on general and special competencies. (10)     Information concerning character and independence at work. (11)     Information concerning two former or current colleagues or superiors who can give the committee both orally and in writing information about the work and co-working skills of the candidate. (12)     Other information which can show the candidate’s professional qualities and skills which are important for Court of Appeal judges.” The prospective candidates were moreover informed that applications should be accompanied, as applicable, by: “(1)     Copies of degree certificates. (2)     Copies of judgments which the candidate has drafted in the last 12 months, in orally argued court cases. (3)     Copies of written submissions which the candidate has drafted and orally argued in the last 12 months in court cases. (4)     Copies of administrative decisions which the candidate has drafted in the last 12   months. (5)     Published academic books and copies of articles by the candidate. It is requested that peer-reviewed articles be labelled as such. (6)     Other documents which can demonstrate the candidate’s professional competence to work as a judge at the Court of Appeal.” 21.     Thirty-seven applications were initially received, including one from a certain A.E. However, only thirty-three of those applications were ultimately assessed by the Evaluation Committee, because three candidates withdrew their applications and one candidate did not fulfil the legal requirements for the post. Assessment procedure before the Evaluation Committee 22 .     At a meeting held on 2 March 2017, the Minister of Justice (who, at the material time, served in that capacity under the title of Minister of the Interior) submitted the applications to the Chairman of the Evaluation Committee [1] . During the meeting, the Minister suggested to the Chairman that the Evaluation Committee provide her with a list of some twenty qualified candidates to choose from. 23 .     Following the meeting with the Minister of Justice, the Evaluation Committee set in motion the assessment process. According to the testimony provided by the Chairman of the Evaluation Committee in judicial proceedings brought in the aftermath of the appointment process by two of the shortlisted candidates, namely J.R.J. and Á.H., the Committee conducted its assessment on the basis of an evaluation table devised by it (see paragraphs 60-75 below for further information on these judicial proceedings). It appears from the Chairman’s testimony that each candidate was individually evaluated and given points on the basis of twelve specific assessment criteria [2] noted on the evaluation table, which included education, judicial experience, and experience of legal practice or of public administration. The total number of points received by the candidates then determined their ranking. 24.     The Evaluation Committee interviewed the candidates between 24   and 26 April 2017 and on 2 May 2017, and also sent questionnaires to the persons indicated by the candidates as referees. 25 .     On 11 May 2017 the Chairman of the Evaluation Committee submitted the Committee’s draft assessment report to the Minister of Justice. The report included a list of fifteen candidates who were considered by the Committee to be the most qualified for appointment to the Court of Appeal as judges. According to information obtained from the judicial proceedings mentioned in the previous paragraph, the Minister asked once again during this meeting whether the Committee could provide her with a list that contained more than fifteen qualified candidates, upon which the Chairman showed the Minister the evaluation table that they had worked on and from which the list of the fifteen most qualified candidates had been generated. 26.     On the same day, the Committee sent the draft assessment report to the candidates for their comments. 27 .     Seventeen candidates sent in comments, which were discussed at the Committee’s meetings on 18 and 19 May 2017. Final assessment report prepared by the Evaluation Committee 28 .     On 19 May 2017 the Evaluation Committee submitted its assessment report to the Minister of Justice, which had been finalised after the review of the comments received from the candidates in response to the draft report. According to the information provided in the report, while the comments received from the candidates had given rise to some changes in the Committee’s assessment, they had not affected its recommendations regarding the fifteen most qualified candidates. 29.     According to the testimony provided by the Minister of Justice before the District Court in a different set of judicial proceedings brought in the aftermath of the appointment process by two other candidates, namely E.J. and J.H., the Committee also submitted to the Minister on 19 May 2017, along with the assessment report, the evaluation table noted in paragraph   23 above, which showed the number of points allocated to each of the thirty ‑ three candidates under each evaluation category and their rankings (see paragraphs 91-96 below for further information on these judicial proceedings). The Government argued in their observations that the assessment table had been submitted to the Minister of Justice at a later date – that is on 28 May 2017, together with the Evaluation Committee Chairman’s letter to the Minister of Justice (see paragraph 40 below) – but they did not present any evidence in support of their argument. 30.     The 117-page assessment report was divided into six chapters. The first chapter stated the names of the candidates, the second chapter set out the assessment criteria, the third chapter explained the procedure adopted by the Committee in conducting its assessment, the fourth chapter provided general information about the candidates, and the fifth chapter contained the evaluation of the candidates. The last chapter was divided into twelve sections – corresponding to the twelve different assessment criteria noted in paragraph   23 above – where the candidates were evaluated at the end of each section according to their qualifications. In the conclusion part of the report, the Evaluation Committee provided the following explanations on its assessment process: “... The Evaluation Committee’s conclusion is based on a comprehensive assessment of the applicants’ merits, in which the most important aspect is that the applicants have a broad, general legal education, knowledge and ability. In assessing the extent to which applicants’ professional experience is utilised in the work of judges of the Court of Appeal, it is most important that they have solid experience of judicial work, legal practice, and administrative work related to the resolution of disputes. It also matters whether the applicants’ experiences have been varied, such as whether they have experience in applying legal rules in different areas of law. In addition, the experience of the first few years of each job is given relatively the greatest weight in this regard, so there is less reason to differentiate between applicants with lengthy work experience because one of them has held a job longer than the other. ... In assessing general competence, and the ability to prepare and draft judgments and to preside in court, the Committee has given consideration to comments of referees, application documents, other relevant documents and the interviews held with the applicants.” 31 .     The Committee found in its report that all thirty-three candidates that it reviewed were legally qualified to serve as Court of Appeal judges. However, in the conclusion of the report, it proposed a list of fifteen candidates whom it deemed to be the most qualified for the post of judge at the Court of Appeal. The assessment report, as opposed to the evaluation table on which the assessment was based, did not provide any ranking of those fifteen candidates; yet it stated explicitly that they were all more qualified for the post of judge at the Court of Appeal than the remaining eighteen candidates. A.E. was not among the fifteen candidates that the Committee considered to be the most qualified. It appears from the evaluation table attached to the assessment report that A.E. was ranked 18th among the thirty-three candidates [3] . 32.     According to information that emerged during the first set of judicial proceedings brought by the candidates J.R.J. and Á.H. mentioned above (see paragraph 23), on 19   May   2017 the Evaluation Committee also submitted a memorandum to the Minister of Justice on the procedure by which it had evaluated the comments made by the candidates in response to the draft assessment report (see paragraphs 27 and 28 above). Procedure before the Minister of Justice (a)    Preliminary exchange with Parliament regarding the appointment procedure 33.     By email of 12 May 2017, the Secretary-General of Parliament sent a memorandum to the Minister of Justice and the Speaker of Parliament on the procedure to be followed for the judicial appointments to the Court of Appeal and the role of Parliament in the process. The memorandum noted at the outset that the procedure before Parliament was without precedent and not entirely clear, but that it would be conducted in accordance with section   45(5) of the Parliamentary Procedures Act no. 55/1991 (see paragraph 109 below) and then provided further details in relation to the proposed procedure. Accordingly, the Minister of Justice would submit to Parliament one proposal for appointment to each of the fifteen posts. The Minister was expected to provide grounds for her proposals, stating in particular if she intended to deviate from the assessment of the Evaluation Committee. The Minister’s proposals would then be sent to the Constitutional and Supervisory Committee of Parliament (hereinafter “the   CSC”), which would give its opinion on those proposals in a manner that enabled Parliament to decide on each proposed candidate. The memorandum stated that no changes could be made to the Minister’s proposals by Parliament; if any one of the proposals was not accepted by Parliament, then the procedure would have to be repeated. 34.     By email of 16 May 2017, the ad hoc Permanent Secretary of the Ministry of Justice informed legal advisors from the Prime Minister’s office, the Ministry of Justice and the Ministry of Finance that the Minister had approved the proposed procedure set out in the memorandum of the Secretary-General of Parliament. (b)    Proposal of the Minister of Justice concerning the appointments to the Court of Appeal 35.     In an email dated 26 May 2017, the Minister of Justice sent to two in ‑ house legal advisors the draft of the letter that she was planning to submit to Parliament concerning the appointments to the Court of Appeal and asked them to provide feedback. While the draft letter was not included in the case file for examination by the Court, it appears from further correspondence between one of the legal advisors and the ad hoc Permanent Secretary of the Ministry of Justice (see paragraph 37 below) that the Minister intended to depart from the list prepared by the Evaluation Committee. 36 .     In their response on the same day, the legal advisors informed the Minister that they had inserted some comments and suggestions in the draft letter. According to this email, their main comment was that if the Minister intended to change the Committee’s list of proposed candidates, such change had to be specifically reasoned on the basis of the qualifications of the relevant candidates. They further suggested informing the candidates of the changes, at the latest before the list was submitted to Parliament or before it was processed by it. 37 .     On 28 May 2017 one of the legal advisors that the Minister had consulted sent an email to the ad hoc Permanent Secretary of the Ministry of Justice, reiterating the views noted above. He stated mainly that if the Minister of Justice considered that the Evaluation Committee’s assessment procedure or the outcome of its assessment had been flawed, then she (the Minister) had two options. The first option would be to refer the matter back to the Committee for reassessment. As a second option, the Minister could choose to remedy the flaws herself, which would require her to evaluate all the candidates in the light of the “Minister’s objectives” (the expression used in the email) and the relevant legal criteria. In such circumstances, a substantive assessment would have to be made of the qualifications of each applicant based on new grounds. In the legal advisor’s opinion, the standard procedure in these circumstances would be to request the Committee to conduct a new evaluation. He further noted that the Minister’s decision in respect of judicial appointments was an administrative act and therefore had to comply with the Administrative Procedures Act no.   37/1993 (see paragraph 108 below). He lastly proposed that it might be wise to inform the candidates about any change in the emphasis placed on one of the assessment criteria and to give them an opportunity to present new information that could be relevant for the fresh evaluation. 38 .     It appears from the text of the judgments delivered by the District Court on 25 October 2018 in respect of the candidates E.J. and J.H. (see paragraphs 91-96 below) that on 28 May 2017, the ad hoc Permanent Secretary of the Ministry of Justice sent an email to the Minister of Justice concerning the latter’s proposals for appointments to the Court of Appeal. According to the Permanent Secretary, who had reviewed the draft of the Minister of Justice’s proposal, the Minister had three options before her: “1.     It is possible that the Minister may declare tomorrow [to Parliament] that she is unhappy with the criteria on which the Evaluation Committee based its conclusions, and propose that the entry into force of the [new Judiciary Act] be postponed until 1 October [2017]... and that the Evaluation Committee reassess the issue based on criteria which the Minister emphasises with proper reasoning ... 2.     That the Minister may send a letter to Althingi tomorrow with proposals that envisage amendments [to the Evaluation Committee’s list] based on reasoning concerning the increased weight of judicial experience. The Minister [would thus be] repairing the faults with an independent assessment, which means that the same evaluation has to be carried out in respect of all the candidates based on the reasonable and legitimate criteria upon which the Minister proceeds. This means that a substantive evaluation has to be made of the competencies of each candidate based on the new criteria. It would be best to give increased weight to the judicial experience and refer to that in respect of the whole group ... We could also say that with this amendment, the gender balance is changed, without referring to those [particular] considerations in the [Minister’s] proposal. 3.     The Minister may send [her] unamended list to Althingi (which requires work from the Minister to choose the new names, with legitimate reasoning) – not an attractive option –.” 39.     In the meantime, on 27 May 2017 the Minister of Justice asked the Evaluation Committee to provide further information and documents on its evaluation of the thirty-three candidates, and inquired in particular as to whether the Committee had discussed the grounds on which the weight of each assessment criterion had been decided, and whether any documentation relating to that decision existed. She also requested information on whether the Committee had discussed its decision to find only fifteen candidates to be the most qualified for the fifteen posts, in the light of, inter alia , Act   no.   10/2008 on Equality. 40 .     By a letter of 28 May 2017, the Chairman of the Evaluation Committee provided the Minister of Justice with details as to its evaluation procedure. He informed the Minister about the manner in which the Committee had given weight to each of the twelve pre-determined assessment criteria – which had been the same since the amendments introduced by Act no. 45/2010 (see paragraph 14 above) – and explained that the same method and approach had been used in all judicial appointments during his four years as Chairman of the Committee. He stated that, following the same approach, all candidates had been evaluated separately under each criterion, and the points they received were noted in the assessment table; these points then determined the candidates’ overall ranking. He stressed that the Committee had chosen to apply the same weight to each individual criterion as that applied in previous appointment procedures, noting in particular the importance of maintaining consistency in such matters. According to the Chairman, changing the weightings after the submission of candidatures, for the benefit of particular candidates and to the disadvantage of others, had to be avoided. 41.     As regards the Minister’s second question as to why only fifteen names had been proposed in the Committee’ report, the Chairman explained that the Committee had not found that there had been several candidates of equal merit, nor had it encountered any difficulties in determining whether one candidate was more qualified than another. In this instance, fifteen positions had been advertised and the Committee had found that fifteen of the candidates under its review had been more qualified than the remaining ones for those positions. It had, therefore, not been necessary to propose a list of more than fifteen candidates in its report. The Committee’s evaluation table had clearly shown the ranking of the individual candidates. The Chairman continued that the Minister had asked to be able to choose from among, for example, twenty   candidates for the fifteen vacant posts. If this approach were to be followed, the candidate ranked 20th in the Committee’s evaluation table could be chosen over candidates ranked 5th, 10th and so forth. According to the Chairman, this approach would contradict the purpose of Act no. 45/2010 as it had been described in the preparatory material (see paragraph 14 above). The intention behind the legislative framework requiring a separate expert committee to assess candidates for judicial posts, as opposed to leaving that assessment to the Minister of Justice alone, had been to safeguard judicial independence in the light of developments in other European countries. 42 .     Lastly, with regard to the reference made by the Minister to Act no.   10/2008 on Equality, the Chairman stated that the Committee did not evaluate qualifications according to the gender of the candidate. Moreover, Act no.   10/2008, which was of relevance to the Committee’s work under Rules no. 620/2010, did not allow discrimination based on gender, whether direct or indirect. Such gender ‑ based considerations could be entertained by the Minister only if two or more candidates had been considered as equally qualified for the post by the Evaluation Committee, which was not the case in the present circumstances. Procedure before Parliament (a)    Submission of the Minister of Justice’s list of candidates to Parliament 43 .     In a letter dated 29 May 2017, the Minister of Justice presented to the Speaker of Parliament her proposal of fifteen candidates for appointment as Court of Appeal judges. The proposal contained only eleven of the fifteen candidates whom the Evaluation Committee had found to be the most qualified for the post of judge at the Court of Appeal. The candidates ranked 7th, 11th, 12th and 14th [4] in the Committee’s evaluation table had been removed from the list, and replaced with four other candidates ranked 17th, 18th, 23rd and 30th [5] . The Minister’s proposal therefore included A.E., who had been ranked 18th by the Evaluation Committee (see paragraph   31 above). 44 .     In a separate letter sent on the same day, the Minister presented arguments for her proposals and the changes she had made in the Evaluation Committee’s list. The Minister stated at the outset that, in its comprehensive report, the Evaluation Committee had relied on the assessment factors set out in Rules no. 620/2010 (governing the work of the Committee), and the weight ascribed to each assessment factor by the Committee had had a decisive effect on the ranking of each applicant. The Minister was, however, of the opinion that the Evaluation Committee had not given “judicial experience” the weight that the post of judge at an appellate court required. The Minister further argued that the assessment of candidates for judicial posts was not an exact science; it would not be possible to separate a qualified candidate from an unqualified one by a difference of 0.025 points on a scale of 1 to 10, and nothing in Rules no. 620/2010 had called for such working practices. After reviewing the assessment report, the candidates’ comments on that report and the working documents presented to her, the Minister had concluded that a number of other candidates with many years of judicial experience should also have been included on the Evaluation Committee’s list. She thus stated that she considered a total of twenty-four candidates to be eligible for the judicial posts, including those proposed by the Committee, and that she had drawn up her list of fifteen candidates on the basis of the principles described above. The Minister did not provide any further explanation as to why she had decided specifically to replace the candidates ranked 7th, 11th, 12th and 14th with those ranked 17th, 18th, 23rd and 30th. Nor is there any information before the Court as to the names of the twenty-four candidates considered eligible by the Minister of Justice. (b)    Procedure before the Parliamentary Constitutional and Supervisory Committee 45.     Upon receipt of the Minister’s proposals, the CSC held a meeting on 29   May 2017. It invited the Minister of Justice to the meeting, as well as the ad hoc Permanent Secretary of the Ministry of Justice, a number of experts, representatives from the Icelandic Bar Association and the Icelandic Judges’ Association, the Parliamentary Ombudsman and the Chairman of the Evaluation Committee. Although the Court is not in possession of the minutes of this meeting, it transpired from the judicial proceedings brought subsequently by J.R.J. and Á.H. that the Minister of Justice had met with some criticism during this meeting for having failed to provide justification for each of the candidates that she had proposed to Parliament. 46 .     On 30 May 2017 the CSC held three meetings on the proposal of the Minister of Justice for the appointment of judges to the Court of Appeal. At the first meeting, B.N., who was the Chairman of the CSC at the material time, declared that he was the husband of one of the proposed candidates, namely A.E., and therefore stood down. 47 .     At one of the meetings held on 30 May 2017, the Minister of Justice presented a memorandum to the CSC to further substantiate her proposals. In the memorandum, the Minister reiterated her view that more weight should be accorded to judicial experience in the assessment of the candidates for an appellate court, including successful courtroom experience, and stated that she had also taken into account the Equality Act (no.   10/2008) in her proposal [6] . She continued to briefly outline the careers and qualifications of the four candidates whom she had added to the proposal [7] . She concluded with the following remarks: “As described above, it is the substantial judicial experience of these [four] candidates which motivated the Minister’s proposal, in addition to the consideration which must be given to the Equality Act. The Minister is bound to propose those who are most qualified for the post of judge at the Court of Appeal. In this instance, the Minister considers that the aforementioned four candidates are also the most qualified for the post of judge at the Court of Appeal. The Minister’s assessment is based on a thorough examination of the documents of the case, including the applications, the Evaluation Committee’s report, the candidates’ comments, and the working documents of the Committee, and is made in light of the legitimate objectives discussed above. The Minister has not raised any objections regarding the Evaluation Committee’s preparation of this matter. She believes that the Evaluation Committee has shed sufficient light on the matter and that a satisfactory investigation has been performed for the assessment of the factors that constitute the grounds for the conclusion. The Minister considers it appropriate that more weight be given to judicial experience than that given by the Evaluation Committee. The Committee has already evaluated the candidates on the basis of this criterion and all the information about the judicial experience of the candidates is contained in the file. No new information or data has served as a basis for the Minister’s proposal.” 48 .     On 30 May 2017 the CSC also met with the Chairman of the Evaluation Committee, as well as representatives from the Icelandic Bar Association and the Icelandic Judges’ Association and two academics, who answered questions put by the members of the CSC. At the close of the meeting, one of the members of the CSC – who was a member of parliament (MP) from an opposition party – requested the following statement to be entered in the official records: “In view of the limited time allowed to the Committee [the CSC], it is clear that the matter will not be dealt with in a sufficiently professional manner, and this will affect public confidence in the courts.” 49.     On 31 May 2017 the majority of the CSC, divided along party lines, proposed a parliamentary resolution, recommending that Parliament approve the Minister’s proposal. The CSC held at the outset that under the Constitution, the role of the judiciary was to supervise the other holders of State powers, and that evaluation committees, such as that which had